Self Help Guide
|The purpose of this guide is to assist you, the veteran, in preparing a claim for U.S. Department of Veterans Affairs (VA) benefits based on a spinal cord injury during your active military service or the onset or aggravation of a spinal cord-related disorder during, or as a result of, active military service. This guide explains the VA’s current programs and policies for providing disability compensation, pension and health care to veterans who have become partially or totally disabled because of a spinal cord injury or disorder (SCI/D). We have also addressed benefits available to family members and survivors of disabled veterans, as well as what to do if the VA denies your claim or establishes an inappropriate rating for your disability.|
|What You Should Know About VA Benefits, Claims And Health Care|
|For Veterans With Spinal Cord Injuries And Disorders|
|What You Should Know About SCI/D|
|The VA Compensation And Pension Program|
|VA Claims & Adjudication Process||
|How The VA Looks At SCI/D|
|If You Cannot Work Because Of Your Disability|
|Increased And Reduced Disability Ratings|
|Special Monthly Compensation|
|Benefits For Dependents And Survivors|
|The VA Health Care Sysem|
|VA Health Care For Veterans With SCI/D|
|Appealing A Denied Claim Or An Improper Award|
|Post-BVA Appellate Review|
|A Word About Getting Help|
|The purpose of this guide is to assist you, the veteran, in preparing a claim for U.S. Department of Veterans Affairs (VA) benefits based on a spinal cord injury during your active military service or the onset or aggravation of a spinal cord-related disorder during, or as a result of, active military service. This guide explains the VA’s current programs and policies for providing disability compensation, pension and health care to veterans who have become partially or totally disabled because of a spinal cord injury or disorder (SCI/D). We have also addressed benefits available to family members and survivors of disabled veterans, as well as what to do if the VA denies your claim or establishes an inappropriate rating for your disability.
It is important to understand that applying for, and establishing entitlement to, VA benefits is often a complex and challenging endeavor. A successful claim requires a knowledge of the specific benefits that the VA offers to disabled veterans, an understanding of applicable laws, regulations and VA policies, knowing what kind of evidence is necessary to support the claim and how to obtain and submit such evidence. Even if the VA grants the claim, you will need to know whether the VA has granted you all the benefits that you are entitled to. While this guide will assist you in understanding what a claim for VA benefits involves, we strongly encourage you to seek the assistance of a trained veterans service representative (also called a national service officer (NSO)) who is familiar with VA laws and procedures. United Spinal Association provides such representation through its network of national service officers throughout the United States without any charge or fee.
While this guide does not address specific modes of treatment for SCI/D, it does provide information about the VA health care system and how to obtain appropriate VA health care for veterans with SCI/D. We have also included information concerning how to resolve health care disputes with the VA.
|What You Should Know About Spinal Cord Injury & Disorders|
|Aside from providing structure and support to the body, the spinal cord serves as the link between the brain and the rest of the body. Comprised of bones, nerves and tissue, the spinal column extends downward from the base of the brain. The cord is protected by the back bones (vertebrae), which are separated and cushioned by disks made of cartilage.
The spine is divided into four sections: cervical (neck), thoracic (chest), lumbar (back) and sacral (pelvis). Each section of the spine is referred to by letter, i.e., C, T, L and S. The vertebrae in each section of the spine are numbered from the top downward. For example, the first vertebra in the neck (or cervical spine) is labeled as C-1, the second vertebra in that section is labeled as C-2, the third in the thoracic spine is labeled as T-3, and so forth.
Nerves run from the spine to specific areas of the body. By noting where a person has weakness, pain, paralysis or other loss of function, a neurologist can trace back and pinpoint where the spine has been damaged. Generally, each spinal nerve has two nerve roots. The root in the front, the motor root, transmits impulses from the spinal cord to the muscles. The root in the back, the sensory root, carries sensory information (about touch, position, pain, and temperature) from the body to the spinal cord. The first spinal nerve has no sensory root.
Because of the function and organization of the spinal cord, damage to the cord can produce various patterns of symptoms, such as numbness, weakness, loss of sensation, loss of bowel and bladder function, paralysis and back pain. These patterns enable doctors to determine the location (level) of spinal cord damage. The following diagram illustrates how damage at different levels of the spine determines the nature and severity of the physical disability(-ies) that can result.
|Some spinal cord disorders originate outside the cord. They include injuries, infections, blockage of the blood supply, and compression. The spinal cord may be compressed by bone (as in cervical spondylosis or a fracture), an accumulation of blood (hematoma), a tumor, a localized collection of pus (abscess), or a ruptured or herniated disk. Other spinal cord disorders originate within the cord. They include fluid-filled cavities (syrinxes), acute transverse myelitis, tumors, abscesses, bleeding (hemorrhage), and multiple sclerosis.
Source: The Merck Manual of Medical Information – Second Home Edition, pp. 561-563, edited by Mark H. Beers. Copyright 2003 by Merck & Co., Inc., Whitehouse Station, NJ. Used with permission.
|The VA Compensation And Pension Program|
|The first step in obtaining VA disability compensation is establishing that a current disability is service-connected. This means that the disability had its onset during active military service, or that a disability that existed prior to a veteran’s entry into active military service was aggravated during service beyond the natural progression of the underlying disease or condition. Once service connection has been established, the VA will review the most recent medical evidence and evaluate the current level of the severity of the symptoms associated with the disability. The VA will then issue a rating (sometimes called a disability “evaluation”), expressed in a percentage of the amount of disability caused by the disease or disorder. This percentage rating determines the amount of monthly compensation paid.
Eligibility for VA disability compensation generally requires the satisfaction of three fundamental requirements. First, there must be a medical diagnosis of a current disease or disorder. Second, there must be medical, or sometimes non-medical (called “lay”), evidence that such disease or disorder had its onset during active military service, or that a pre-existing disease or disorder was aggravated during such service. Third, there must be medical evidence of a linkage (called a “nexus”) between military service and a current disease or disorder. The standard that the VA uses to determine if the medical nexus requirement has been satisfied is whether the medical evidence of record demonstrates that it is “as likely as not” that the current disability is related to the veteran’s military service.
In the context of a claim for benefits based on the residuals of a spinal cord injury, a disease or other disorder of the spinal cord, there must be medical records (e.g., hospital records, doctor’s office or medical clinic records) that reflect a diagnosis of a current disease or disorder of the spinal cord. A doctor’s letter that discusses the veteran’s diagnosis and treatment will also satisfy the current diagnosis requirement. Next, there must be a notation in the veteran’s military service medical records that reflects complaints, treatment, diagnostic test results (such as x-rays) or diagnoses that relate to a spinal cord injury, disease or disorder. Obviously, service records that document an injury to the back or general trauma to the body will satisfy the onset or aggravation during service requirement. Finally, there must be a doctor’s statement or opinion to the effect that it is at least as likely as not that a current spinal cord disease or disorder is related to an injury, the onset of a disease or disorder, or the aggravation of a pre-service disease or disorder, during military service. If evidence satisfying all three elements of service connection is present, the VA must award service connection for the claimed disability.
The VA also provides disability benefits for veterans who do not have any service-connected disorders. VA nonservice-connected (NSC) pension benefits are available where the veteran had at least 90 days of active military service, at least one day of service was during a period of war, the veteran’s military discharge was under conditions other than dishonorable and there is medical evidence that the veteran is totally disabled as the result of a disability not caused by their own willful misconduct. NSC pension is income based, meaning that the veteran’s household (rather than individual) income cannot exceed the maximum annual amount set by the VA each year. Thus, NSC pension is designed to bring the veteran’s total annual household income to the level of the maximum annual amount. There is a dollar-for-dollar offset between the amount of the pension and the veteran’s income, including retirement pension and Social Security benefits, although there are certain types of expenses that can be deducted from the veteran’s countable income, such as unreimbursed medical expenses.
Once a veteran has been service-connected for SCI/D, he or she may be eligible for additional VA benefits besides monthly compensation. These include grants to assist in building a new specially adapted home, to purchase a home and structurally modify it to meet disability-related needs, or to make home improvements and structural alterations to a current residence necessary for disability access or to continue treatment at home. Similarly, veterans may be eligible for a one-time payment toward the purchase of an automobile or other motor vehicle if he or she has service-connected permanent loss, or loss of use, of one or both hands or feet, permanent visual impairment to a specified degree, or immobility of one or both knees or hips. The VA also provides grants for special adaptive equipment and repair, replacement or reinstallation required to safely operate a vehicle purchased with the VA’s assistance. For veterans whose service-connected disability requires the use of a prosthetic or orthopedic appliance, or topical medication that irreparably damages his or her garments, the VA also provides an annual clothing allowance.
Veterans with SCI/D may also be eligible for VA vocational rehabilitation and counseling benefits, as well as employment assistance, to prepare for and secure jobs within their capabilities. Eligibility requires a service-connected disability rated at least at 20%, with a severe employment handicap, or a service-connected disability rated at 10%, with a serious employment handicap. Veterans who are accepted into a vocational training program will receive a monetary allowance and payment for the cost of their training. The program includes an analysis of the veteran’s talents, skills and interests, counseling and planning, on-the-job training and supportive rehabilitation services. The program must be completed within 12 years of the veteran’s separation from military service, or the VA’s first notification that the veteran has a compensable service-connected disability. The program is available for up to 48 months of full-time services or their part-time equivalent, but may be extended for health-related considerations.
|The VA Claims And Adjudication Process|
|No matter what kind of claim is submitted, the law requires that the VA assist a veteran with the development of the evidence in support of his or her claim. This does not mean, however, that you can sit back and expect the VA to do all the work. Claimants are also required to be an active participant in the claims process. You must first file an application for VA compensation where you specifically identify the benefit(s) that you are seeking. You should use VA Form 21-526 (Application for Compensation and/or Pension). This form is extremely long and requires a great deal of information. Be sure to read the instructions carefully. If you do not provide all of the required information, the VA can return the application to you to supply the missing information and will not begin to process the claim until the information is received. If the requested information is not submitted with 12 months, the VA will deem the claim to have been abandoned. It is important to respond to any subsequent VA request for documentation or information for the same reason. Through the VA online application process (“VONAPP”), veterans can complete and submit an electronic VA Form 21-526. To apply electronically, go to www.va.gov, click on the “Benefits” menu, then select “Compensation and Pension”.
When submitting a claim to the VA, it is best to provide all of the medical evidence that you can at the beginning of the claims process. Doing so will lessen the chance that the VA will ask for these records from either you or a provider of care, and delay making a decision on the claim. If you have copies of your military service records or records of post-service medical treatment for the disability you are claiming as service-connected, you should submit them along with your application for compensation. If you have submitted you application electronically, you may send your supporting documentation to the VA by regular mail or personal delivery. Be sure to reference that you have filed electronically and that you include you VA claims file (C-file) number on all correspondence.
If the VA grants the claim, it will award service connection for the disability in question. A disability evaluation or rating will also be established that will determine the dollar amount of monthly compensation payments. The VA uses a schedule of rating disabilities when establishing the level of a veteran’s service-connected disability. The rating schedule is a collection of disorders, categorized by body systems, that include sets of symptoms for each disorder in an increasing order of severity. Percentages of disability are assigned to each level of symptoms from zero (non-compensably disabling) to one hundred percent (totally disabling) in ten percent increments. Each disorder or disability is assigned an identifying diagnostic code. If a particular disorder or disability is not listed, it is rated by analogy to a listed disorder that it most closely resembles. In rating a service-connected disability, the adjudicator reviews the medical evidence of record, finds the compatible diagnostic code and compares the clinical evidence of the severity of the veteran’s current symptoms with the list of symptoms under that diagnostic code. The rating percentage that accompanies the selected level of symptoms is assigned. The VA pays the same dollar amount at each percentage level, regardless of the nature of the veteran’s disability. Thus, the monthly payment for a 10% rating will be the same for SCI/D, diabetes, post-traumatic stress disorder, migraine headaches, etc.
Multiple disability ratings are combined (rather than added together) according to a complex calculation matrix to produce a total rating for all service-connected disabilities. This total is called a “combined” rating.
Since a disability rating is based on the current level of disability caused by the service-connected condition, it is advisable to submit your most recent medical treatment records for the condition to the VA. You may also sign a VA consent to release information form and request the VA to obtain records from your doctor. If possible, ask your doctor to write a letter describing the severity of your disability and its effect on your daily activities. This is also a good idea if you already have service-connected spinal cord-related disability and are seeking an increased VA rating because your condition has worsened since your last rating. Remember, your doctor can also prepare a statement or opinion with respect to the issue of the relationship between your disability and your military service too. Currently, VA doctors are required to provide you with such a letter or statement if you request one.
If a disability has been service-connected and that disability directly or indirectly causes another disability, the new disability can be service-connected as secondary to the primary service-connected disability. In other words, the new disability will be treated as if it were a result of the veteran’s military service and will be evaluated for a separate disability compensation rating. Similarly, if a disability that existed prior to a service-connected disability was aggravated by a service-connected disability, the pre-existing disability may be service-connected and assigned a rating that reflects the extent to which that disability has increased in severity.
Once the VA has granted service-connection and rated the disability, it will then establish an effective date of the award of benefits. As a general rule, the effective date of an award of VA benefits will be the date that the VA receives an application for benefits. An exception is made for veterans who submit a claims application within one year of their separation from military service. In that case, the effective date of an award of service connection will be the day after the veteran’s discharge from active duty.
Congress sets the amount of VA disability compensation payments each year. Since 1976, Congress has raised these amounts through an annual cost-of-living allowance (COLA) so that the value of VA disability compensation is not eroded by economic inflation. VA disability compensation is paid monthly and is non-taxable.
|How The VA Looks At SCI/D|
|The VA defines disability of the musculoskeletal system, including the spine, as the inability, due to damage or infection, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. When evaluating a spinal cord-related disability, the VA is required to take into account both anatomical damage and functional loss. Functional loss may be due to deformity, improper nerve function (defective innervation), adhesions, atrophy or pain. Disability due to diseases (such as arthritis, degenerative joint or disk disease, or osteoporosis) that were incurred in, or are the result of military service, may be compensated as well. Paraplegia and quadriplegia due to a spinal cord injury or disorder are rated in terms of the loss of function and their effect on the veteran’s ability to earn a living wage. In fact, the entire VA compensation scheme is based on the average impairment of earning capacity.
You do not necessarily need to have long history of private or VA medical treatment in order to be granted VA compensation for service-connected SCI/D. Even if you have not had extensive treatment or have filed a claim for VA benefits before, the Veterans Claims Assistance Act of 2000 (VCAA) requires that the VA provide you with a medical examination to obtain a medical opinion if such action is necessary for the VA to make a fair and informed decision. There are three criteria that must be satisfied in order to trigger the VA’s duty to provide a medical examination. First, there must be competent evidence that the claimant has a current disability or recurrent or persistent symptoms of a disability. Competent evidence in this context is evidence that comes from a doctor (for a diagnosis) or sometimes lay evidence (description of symptoms) that tends to prove the matter at issue. Second, the evidence of record indicates that the disability or symptoms may be associated with the claimant’s active military service. Third, the evidence that exists does not contain sufficient medical evidence for the VA to make a decision on the claim. The VA is required to make its determination as to the need for further development of the medical evidence after reviewing all of the medical and non-medical evidence of record, including the claimant’s statements.
Once you have submitted all of the evidence that you have to the VA, and the VA has gathered all of the evidence that it is required to under the VCAA, the VA will make its decision as to whether your current disability is service-connected. If service connection is established, the VA will determine your current level of disability based on the severity of your symptoms. This will establish a disability rating, which will in turn establish the level of your monthly disability compensation payments. The VA will also make a decision as to the effective date of your award of benefits.
|If You Cannot Work Because Of Your Disability|
|Even if your rating for SCI/D is not 100%, VA benefits are also available to compensate you at the 100% level in the event that you are not able to work because of your service-connected disability(-ies). If you have a single service-connected disability rated at 60% or higher, and you cannot obtain or maintain (i.e., get or keep) substantially gainful employment because of that disability, you may be entitled to a total rating on the basis of individual unemployability (TDIU or IU) due to service-connected disability. “Substantially gainful employment” is essentially a job that pays at least an amount equal to the annual poverty level set by the government. TDIU entitles recipients to monthly VA compensation at the 100% level, even though the severity of the disability in question does not meet the requirements for a 100% rating under the rating schedule. Similarly, if you have more than one service-connected disability, you may be eligible for TDIU benefits if one of the disabilities is rated at least 60%, your combined rating is at least 70% and you are unable to obtain or maintain substantially gainful employment as the result of one or more of such disabilities.
Entitlement to TDIU generally requires evidence of unemployment due to the disability in question and medical evidence (i.e., a doctor’s statement) that your service-connected disability renders you totally disabled and unemployable.
The fact that you have a paying job does not automatically disqualify you from being entitled to a TDIU rating. If your salary is substantially less than the prevailing poverty level, or you are working at a job where you are protected from the requirements that someone else in that position would be expected to satisfy (e.g., working for a friend or relative), the VA will not consider you to be gainfully employed. A job with a salary below the poverty level is called “marginal” employment. A job where you are protected from normal work requirements is called “sheltered” employment. Both marginal and sheltered employment are the exceptions to the unemployment requirement for TDIU benefits.
TDIU is not necessarily a permanent benefit. The VA may periodically require you to undergo a medical examination to check whether you are still unable to work due to a service-connected disability. Failure to report for such an examination could result in a revocation of TDIU. Likewise, if the VA becomes aware that you are working at a job that is neither marginal or sheltered while you are receiving TDIU benefits, your TDIU rating could be revoked and you may be liable to the VA for TDIU benefits paid to you after you became employed. Caution must be exercised even if you working as a volunteer. If the VA determines that the nature and amount of even unpaid work that you are performing demonstrates that you are not unemployable, TDIU can be revoked as well. Anytime the VA revokes a TDIU rating, the amount of compensation drops to the level of the veteran’s actual rating under the rating schedule.
|Increased And Reduced Disability Ratings|
|Disability ratings for service-connected disorders are subject to increases, reductions and time protection.
If your service-connected disability worsens in severity, you can file a claim for an increased disability rating at any time. Claims for increased ratings concentrate solely on whether the symptoms associated with a service-connected disability have increased since the last rating. Medical evidence of such an increase is required (e.g., hospital or doctors’ records, a doctor’s letter or other statement), however, non-medical or lay statements may be submitted in addition to strengthen the case.
Temporary 100% (total) ratings are available, even if your rating is less than 100% if:
Unless the VA specifically states in its rating decision that it has assigned a permanent and total (P&T) rating to a service-connected disability, that rating is subject to reduction under certain circumstances. The VA may call you in periodically for examination to determine whether your service-connected disability has improved. Failure to report for the examination can potentially result in a reduced rating. Nevertheless, if you have medical treatment records or a doctor’s written opinion that reflects that the condition has remained static or has worsened, you may submit such evidence to the VA in support of maintaining the existing rating. Due process considerations require the VA to notify you in writing that it is proposing to reduce your rating and to establish a time frame within which you must respond. You are entitled to submit additional argument or evidence in opposition to the reduction.
The VA has the right reduce a rating at any time after a grant of disability compensation where there is evidence of fraud on the part of the beneficiary or clear error in the rating decision that granted the benefit. Otherwise, the VA must base its decision to reduce a rating on medical evidence that the underlying disability has improved. If a specific rating (i.e., the actual percentage assigned to the disability) has been in effect for five years or more, the VA must point to medical evidence that demonstrates “sustained improvement” in that disability over the course of the rating in order to reduce it. Such a finding requires that all of the clinical evidence must be taken into account, rather than merely one or a few medical records. A reduction in a 100% rating, no matter how long it has been in effect, requires medical evidence of “material improvement” in the disability in order to reduce it. Essentially, this standard requires that the severity of the disability has improved to the point at which the condition has stabilized at less than the severity it had been at the time of the grant of the 100% rating, rather than merely a temporary improvement.
If you have been awarded a 100% rating for a single service-connected condition and the VA has not assigned a permanent rating, a separate claim for a P&T rating may be filed. A successful P&T claim requires medical evidence of permanent and total disability.
Laws and regulations protect certain VA disability compensation benefits that have been in place for certain periods of time. If a VA award of service connection for a disability has been in effect for ten years or more, absent evidence of fraud in applying for compensation for that disability, the VA may not revoke service connection. Similarly, if a specific rating percentage has been in effect for 20 years or more, absent evidence of fraud, the VA may not reduce that rating.
|Special Monthly Compensation|
|As a general rule, once the VA has awarded a 100% rating for a single disability, or a combined rating of 100% for multiple disabilities, the amount of monthly compensation is capped. In other words, you cannot generally receive more than the dollar amount equal to 100% rating under the rating schedule, since multiple ratings are combined rather than added. As is often the case, however, there are exceptions.
One example of such an exception is special monthly compensation (SMC). As discussed above, the VA rating is based on the average impairment of earning capacity caused by the service-connected disability. SMC, however, is based on the physical inconvenience of certain kinds of disabilities, the impact of such a disability on the individual’s social and family interactions and the serious nature of that disability. Logistically, entitlement to SMC benefits involves an application of a veteran’s current symptoms and level of disability to a complicated set of legal eligibility requirements. In performing this analysis, the VA uses a type of shorthand to refer to distinct types of SMC benefits, such as “k”, “l”, “m”, “n”, “o”, “p”, “r”, and “s”. These refer to the subsections of the law that establishes SMC (e.g., title 38, United State Code, section 1114(k)).
SMC can be divided into two categories of benefits, basic SMC (subsection k) and higher level SMC (subsections l through s). Eligibility requires that the disability underlying SMC be service-connected. SMC is paid at fixed levels on a monthly basis and is paid in addition to disability compensation paid under the rating schedule.
An SMC “k” award is available for the anatomical loss, or the loss of use, of extremities (one hand or one foot), as well as senses (vision in one eye or hearing in both ears), creative organs (testicle(s) or ovary(-ies)), both buttocks (due to damage to muscle group XVII), one or both breasts for a female and the power of speech (aphonia). The most common SMC “k” awards for individuals with service-connected SCI/D involve the loss of use of the extremities or the buttocks (causing the inability to rise from a seated or stooped position and to stand erect). The basic test for “k” eligibility in this regard is whether there is no “effective function” remaining that would be equal to an amputation with the use of a “suitable prosthetic appliance”. Loss of use of the hand generally involves the inability to grasp or manipulate objects. Loss of use of the foot generally involves the inability to balance or to step forward using the foot. There are certain conditions where the VA automatically recognizes the loss of use of the foot, including complete unfavorable ankylosis of the knee (i.e., the total inability to use a knee joint), the complete ankylosis of two major joints of the foot, the shortening of one leg by 3½ inches or more and the compete paralysis of the external popliteal nerve with accompanying foot drop.
Another common SMC award that affects individuals with SCI/D is SMC “s”. An “s” award is warranted where a veteran has a single service-connected disability rated as 100% disabling (i.e., a total rating) and has an additional service-connected disability or disabilities that involve a different body system that are independently ratable at 60%. It is not enough that multiple ratings combine to 100%. Rather, there must be at least a single 100% rated disorder. The total rating does not have to be adjudicated as permanent in nature.
An “s” rating is also available if the veteran is permanently housebound. The VA defines “permanently housebound” as being substantially (as opposed to completely) confined to a dwelling as the result of service-connected disability and it is reasonably certain that that such disability will continue throughout the veteran’s lifetime. These kinds of determinations should be made by a physician, whose written opinions or reports in this respect would serve as the best evidence to submit in support of a claim for “s” SMC benefits.
An SMC “l” award is available where a veteran is in need of the regular (as opposed to constant) aid and attendance (A&A) of another person or is permanently bedridden. The benefit is designed to compensate for the expense of an attendant. The attendant can be a family member or a friend, but if a licensed medical professional is medically necessary, a higher level of compensation is available. SMC for A&A may be awarded where the veteran is unable to dress, undress, clean and groom himself or herself, frequently needs to adjust orthopedic or prosthetic appliances, cannot to feed himself or herself because of the loss of coordination of the arms and hands or extreme weakness, cannot attend to the “wants of nature”, needs protection from hazards present in the daily environment, or presents an actual medical need to remain in bed.
Figuring out the eligibility requirements for the higher levels of SMC compensation (“l” and above) is an extremely complex undertaking. There are half-step and full-step increases available among and between the various SMC levels. The important thing to remember is that there must first be entitlement to an SMC “k” award on the basis of both upper extremities, both lower extremities, one upper extremity and one lower extremity or both eyes. The remaining higher levels of SMC benefits build on one another and take into account combinations of loss, or loss of use, of body parts or senses listed in subsection “k,” as well as the level of severity of the disabilities caused by such loss or loss of use. The complexity of SMC is another example of the importance of securing the assistance of a trained veterans service representative.
|Benefits For Dependents And Survivors|
|The VA offers benefits for the current spouse, natural or adopted dependent children and, sometimes, dependent parents, of veterans who are eligible to receive disability compensation. In addition, the VA provides a “dependents” allowance, which is a fixed amount in addition to the veteran’s monthly compensation payment, for veterans whose service-connected disability rating is 30% or higher. The veteran is entitled to receive such an allowance for each dependent.
In addition to certain educational, training and home loan guaranty benefits for veterans’ dependents, the VA offers survivors’ benefits to the dependents of deceased service-connected veterans. The primary benefit in this respect is Dependency and Indemnity Compensation (DIC). DIC is a fixed amount of monthly compensation that is paid to the veteran’s eligible survivors where the veteran’s service-connected disability caused, or contributed substantially and materially to cause, his or her death. Frequently, the veteran’s death certificate lists a service-connected disability as the cause, or a primary or secondary contributing cause, of death. If a service-connected disability is not listed on the death certificate, an opinion from the veteran’s treating physician, the physician who signed the death certificate or another medical expert to the effect that the veteran’s death was medically related to his or her service-connected disability should be obtained.
Even if the veteran’s service-connected disability was not a cause of his or her death, DIC may be available where the veteran was continuously rated as totally disabled for a period of 10 years immediately preceding death, continuously rated as totally disabled from the date of his or her military discharge and for at least five years immediately preceding death, or was a former prisoner-of-war who died after September 30, 1999, and was continuously rated as totally disabled for a period of at least one year immediately preceding death.
Eligible DIC survivors include: surviving spouses who have not remarried or who remarry after age 57, unmarried children under the age of 18, totally disabled or “helpless” children between 18 – 23, if they attend a VA-approved school and low-income parents of deceased service members or veterans. If a surviving spouse has lost eligibility due to remarriage, he or she can become eligible for DIC if that marriage is dissolved by the death of the new spouse, divorce or annulment.
Accrued compensation benefits may be payable to a survivor in addition to DIC. If the veteran died while a claim for service-connection for a disability was pending and that disability is causally related to his or her death, the VA may pay the survivor the amount of retroactive benefits that would have been payable to the veteran had a claim for service connection been granted prior to the veteran’s death. Accrued benefits were previously limited to one year’s worth of benefits, then two year’s worth. Currently, the amount of retroactive benefits is limited only by the effective date of the award of service connection, which will usually be the date that the veteran’s original claim was filed. Accrued benefits are the exception to the general rule that a pending claim expires upon a veteran’s death. The survivor does, however, need to file a separate claim for accrued benefits in his or her own name.
Similar to NSC pension for veterans, the VA provides a death pension benefit to low income unmarried spouses of deceased veterans and unmarried children of deceased veterans under age 18, or under age 23, if attending a VA-approved school or who have become permanently incapable of self-support before the age of 18. The veteran must have served on active duty for at least 90 days with at least one day during a period of war, and have received a discharge from service under conditions other than dishonorable. Longer periods of service may be required if the veteran entered active service after September 8, 1980, or October 16, 1981, if an officer. There is also an annual maximum allowable income level that is applied to the survivors’ annual household income.
The natural children of veterans who served in Vietnam between January 1962 and May 1975, or who served in or near the demilitarized zone (DMZ) in Korea between September 1967 and August 1971, and who suffer from spina bifida (a congenital birth defect involving an incomplete closure of the spinal cord) are eligible for certain VA disability benefits. Spina bifida is manifested by impairment of the use of the arms and hands, and the legs and feet, bowel and bladder function, as well as cognitive function. In such cases, the veteran parent is presumed to have been exposed to the highly toxic chemical defoliant Agent Orange. Named for the orange stripe on the barrels in which the chemical was stored, Agent Orange contained dioxin, one of the most toxic substances known. Agent Orange was sprayed in Vietnam and Korea to destroy vegetation that could provide enemy cover. Exposure to dioxin has been scientifically determined to result not only in cancer, diabetes and other diseases in exposed veterans, but also spina bifida in their natural children. Currently, the VA provides three levels of a monthly monetary allowance to these children, based on the severity of their conditions. These include vocational counseling and rehabilitation, VA health care and education and training benefits.
Similar benefits are available for the biological children of women veterans who served in Vietnam between February 1961 and May 1975 and who suffer from certain birth defects that have resulted in permanent physical or psychological disability. Birth defects resulting from inherited disorders, birth-related injuries or fetal or neonatal disorders are not covered under this benefit.
A claim for spina bifida or other birth defects-related benefits requires evidence that the veteran actually served in Vietnam or Korea during the applicable periods, the child’s birth certificate or other proof of parentage, a medical diagnosis of spina bifida or other birth defect, and medical evidence of the current level of severity of the condition. The current levels of benefits for children with spina bifida and other birth defects are available on the VA’s website.
In addition to monetary benefits, the VA extends medical care coverage to eligible veterans’ dependents and survivors. The Civilian Health and Medical Program of the VA (CHAMPVA) provides reimbursement for inpatient and outpatient medical expenses, including medication, skilled nursing care and durable medical equipment, similar to a health insurance carrier. Some VA medical centers actually provide medical services directly to CHAMPVA beneficiaries. Eligibility for this program requires that the beneficiary be the spouse or child of: a veteran who has been rated totally and permanently disabled due to a service-connected disability, or who has died as the result of a service-connected disability, or who was rated as permanently and totally disabled at the time of death, or a member of the armed forces who died in the line of duty. It is possible that dependents and survivors who satisfy these criteria are also eligible for medical care under the Department of Defense’s program for civilian dependents of service personnel, TRICARE. Note, however, that enrollment in TRICARE is a bar to enrollment in CHAMPVA. In addition, if a CHAMPVA beneficiary is in receipt of Medicare benefits, Medicare will be the primary insurer, with CHAMPVA covering out-of-pocket expenses.
|The VA Health Care System|
|The VA’s health care delivery program is one of the largest integrated health care systems in the nation. The system includes hospitals, clinics, nursing homes, domiciliaries, readjustment counseling centers and specialty care centers and clinics. The system is organized in regional groups called “Veterans Integrated Service Networks” (VISN). The VISNs are designed to pool and align resources to better meet local health care needs and provide greater access to care. VA health care is provided in the form of a “medical benefits package”, which includes preventative care (e.g., immunizations, examinations, screening, health education programs), hospital care (e.g., emergency inpatient care, inpatient diagnostic testing, surgery, inpatient mental health and substance abuse treatment), outpatient/ambulatory care (e.g., emergency outpatient care, diagnostic testing, medical, surgical, mental health and substance abuse, chiropractic care, bereavement counseling), as well as prescription medication, equipment and supplies. Eligibility requirements are based on active duty service in the armed forces. National guard members and reservists who have been called to active duty are eligible as well. Service members, including Guard and reserve personnel, who have served on active duty in a theater of combat operations have special eligibility for VA inpatient, outpatient and nursing home care for two years following their separation from active service.
In order to receive treatment from the VA, veterans must first enroll in the system. The enrollment application (VA Form 10-10EZ) can be obtained from any VA health care facility or regional office, or online at www.va.org. While the VA recommends that all veterans who desire VA medical services formally enroll, there are certain categories of veterans that are automatically eligible for treatment. These include: veterans seeking care for a disability that has already been service-connected, veterans with at least one disability rated at 50% or more, and veterans who, within 12 months of their military discharge, seek care for a disability that the military has determined was incurred in, or aggravated by, military service, but which the VA has not yet rated.
Unfortunately, due to limited resources, the VA allocates medical care according to a classification of designated “Priority Groups”. Under the priority group system, veterans who have been granted service connection for their disabilities and those whose incomes are below prescribed levels receive treatment before other veterans. The following is a summary of the VA health care priority groups.
Group 1: Veterans with service-connected disabilities rated 50 percent or more and veterans in receipt of TDIU.
Group 2: Veterans with service-connected disabilities rated 30 or 40 percent.
Group 3: Veterans with service-connected disabilities rated 10 and 20 percent, veterans who are former prisoners-of-war or were awarded a Purple Heart, veterans awarded special eligibility for disabilities incurred in treatment or participation in a VA Vocational Rehabilitation program, and veterans whose discharge was for a disability incurred or aggravated in the line of duty.
Group 4: Veterans receiving aid and attendance or housebound benefits, and veterans determined by VA to be catastrophically disabled. Some veterans in this group may be responsible for co-payments.
Group 5: Veterans receiving VA pension benefits or who are eligible for Medicaid, nonservice-connected veterans and veterans who have a service- connected disability rated at 0% (non compensable rating), and veterans whose annual income and net worth are below the established VA means test thresholds. See www.va.gov for the current threshold.
Group 6: Veterans of the Mexican border period or World War I; veterans seeking care solely for certain conditions associated with exposure to radiation or exposure to herbicides while serving in Vietnam, illnesses associated with combat service in a war after the first Gulf War or during a period of hostility after Nov. 11, 1998, for any illness associated with participation in tests conducted by the Department of Defense as part of Project 112/Project SHAD (Shipboard Hazard and Defense); and veterans with 0% service-connected disabilities who are receiving disability compensation benefits due to multiple 0% ratings.
Group 7: Non service-connected veterans and 0% rated service-connected veterans with income above VA’s national means test threshold and below VA’s geographic means test threshold, or with income below both the VA national threshold and the VA geographically based threshold, but whose net worth exceeds VA’s ceiling who agree to pay co-payments. See www.va.gov for current thresholds and ceilings.
Group 8: All other nonservice-connected veterans and 0%, non-compensable service-connected veterans who agree to pay co-payments.
Effective Jan. 17, 2003, VA no longer enrolls new veterans in Priority Group 8. Veterans previously enrolled in Group 8 (veterans with income above a threshold level and who agreed to higher co-payment levels) will continue to be enrolled.
As you can see, quite often, an award of VA service-connected disability compensation is the gateway to VA health care.
|VA Health Care For Veterans With SCI/D|
|Veterans with service-connected SCI/D are eligible for health care because of their service-connection. However, even veterans with a SCI/D that is unrelated to their military service may still receive VA medical care because of the catastrophic nature of their disability. The VA has the largest single network of SCI care in the nation and integrates vocational, psychological and social services within a continuum of care. Wheelchairs, accessories, supplies, preventive health care and education for veterans with SCI/D are provided as well.
Through VA hospitals, SCI centers and clinics, VA SCI/D services include emergency care, medical and surgical stabilization, rehabilitation, primary care, preventive care, specialty sustaining care, surgical care, outpatient care, home care, nursing home care and long-term care. VA SCI/D care focuses on the prevention and early detection of complications of SCI/D, with multidisciplinary teams providing annual comprehensive evaluations. Designed as a “hub and spoke” system, SCI/D services extend from regional SCI centers around the nation that offer primary and specialty care by multidisciplinary SCI care teams to primary SCI care teams and support clinics at local non-SCI VA medical centers. Each primary care team must have, at minimum, a physician, a nurse and a social worker. Teams at support clinics have additional team members, including an SCI coordinator. Newly injured veterans and active duty personnel are referred to a VA SCI center for rehabilitation after being stabilized at a trauma center. View a listing of the VA’s SCI centers.
The VA is required to provide specialized care to veterans with SCI/D. Problems encountered with the delivery and quality of VA health care should be addressed to the patient advocate for the medical facility in which the care was rendered. An experienced veterans service representative can be of invaluable assistance in resolving health care disputes.
|Appealing A Denied Claim Or An Improper Award|
|Generally, the VA Regional Office (VARO) nearest the veteran in the state where he or she resides will make the initial decision on a claim for VA benefits. Once the VARO decides a claim, it will send the claimant and his or her service representative, if any, a notice of the decision. If the VARO denies the claim, or grants benefits at a level lower than that warranted by the evidence or effective from a date later than that allowed by law, the claimant should immediately appeal the decision. The first step in appealing a claim is to file a “Notice of Disagreement ” (NOD) with the VARO that made the decision. While there is no official NOD form, there are several requirements which must be satisfied in order to file a legally valid NOD. The NOD must be in writing. You may use VA Form 21-4138 (Statement in Support of Claim) or a simple letter will suffice. This form is available on the VA’s website, www.va.gov. Be sure to write “NOTICE OF DISAGREEMENT” at the top of the document. You must specifically state that you are disagreeing with the VA’s decision. Identify the decision by the date that the decision was made. Specifically state that you intend to appeal that decision. State the claim or issue that you are appealing. If the VARO decision adjudicated more than one claim, state which claim(s)/issue(s) that you intend to appeal. Since you do not want to appeal an award of benefits that has been properly granted in this situation, specifically state any claim/issue that you do not intend to appeal.
In order to begin the appeal process, the VA must receive your NOD within one year of the date of the letter notifying you of its decision. The NOD may be mailed or hand-delivered to the VARO, however, you can fax the NOD if the deadline is looming. It is always best to file the NOD as soon as possible after you have decided to appeal an adverse decision. That way, the VA will begin to process the appeal sooner and you avoid the chance of missing the deadline. If the NOD is not timely filed, the VA will consider the decision to be final. In that event, the VA will only reopen the claim if you submit new and material evidence of entitlement to the benefit sought or if you can establish that the VARO’s decision was the product of clear and unmistakable error (which is very difficult to prove).
The VA has two appellate decision makers. Each VARO has one or more Decision Review Officers (DRO). The DRO reviews the claim on a de novo basis, basically from scratch and without any deference to the VARO’s adjudicators. The DRO has the authority to modify a VARO claims decision by either granting benefits or ordering additional development of the evidence and readjudication. You can expressly request review of your decision by a DRO in your NOD. You and your representative, if any, may appear in person before the DRO to discuss why you believe that the VARO’s decision is wrong, or you may submit a written explanation of your position, or both.
The VA’s highest appellate body is the Board of Veterans’ Appeals, (BVA) located in Washington, D.C. If you do not request a DRO review in your NOD, the VA will send you and your representative, if any, a letter that acknowledges receipt of your NOD and asking whether you desire a DRO review or would rather have your appeal forwarded to the BVA for consideration. We recommend that you seek DRO review before you request a BVA appeal. The DRO process is frequently successful and is generally much faster than going directly to the BVA. If you do not receive a better decision from the DRO, you can still appeal to the BVA.
If the DRO does not award benefits, or if you request BVA consideration instead, the VA will issue a “Statement of the Case” (SOC). The SOC is the VARO’s explanation of the reasons why it decided your claim(s) as it did. It contains a discussion of the evidence considered, the relevant laws and regulations and an analysis of the application of the law to the facts surrounding the claim. If you submit, or the VA acquires, new evidence concerning your claim after it has issued the SOC, the VARO will consider that evidence and make a new decision. It will then issue a Supplemental Statement of the Case (SSOC) that will explain its decision, much like a SOC. Read the SSOC carefully. If the evidence considered after the SOC was issued raises a new claim, one that was not included in the decision on appeal, and that claim is denied in the SSOC, you must file a new NOD with respect to that issue in order to include that claim in the pending appeal.
The SOC is significant for two reasons. First, it provides the basis on which to attack the VARO’s decision if the VA’s interpretation of the evidence or the law is flawed. Second, it triggers the deadline for “perfecting” an appeal to the BVA, which provides the BVA with jurisdiction to consider the appeal.
You have 60 days from the date of the SOC (or the SSOC) or the remainder of the one-year period after the VARO’s initial notice of it’s decision, whichever is later, to file a substantive appeal to the BVA using VA Form 9. This form is available on the VA’s website, www.va.gov. You do not need to explain the reasons why you are appealing the VARO’s decision in your substantive appeal, but you need to list each claim/issue that you want the BVA to review. The BVA can extend the deadline for filing a substantive appeal only for good cause shown, however, it is better to file the substantive appeal as soon as possible to avoid this risky situation. An untimely substantive appeal will strip the BVA of jurisdiction to consider the appeal.
You will have the opportunity to request a personal hearing before the BVA prior to its deciding your appeal. You may elect to come to Washington, D.C., and appear before the Veterans Lay Judge (VLJ) in person, request an in-person hearing at the VARO regional office (but you will have to wait until a VLJ is scheduled to visit that VARO), or you can request a video conference hearing. The hearing will be on the informal side, with the VLJ listening to you or your representative’s arguments in favor of the claim and asking you questions directly. Statistically, there is a slightly higher chance that the appeal will be granted if you appear for a personal hearing, however, there is always a risk that you might say something detrimental to your claim or exhibit a behavior which may negatively influence the VLJ. Personal hearings are advantageous in claims that involve factual issues (e.g., accidents or injuries during service, when symptoms began or how severe they currently are). Since lay claimants do not have the medical training and expertise necessary to provide credible testimony on medical issues, a personal hearing where the outcome depends on medical evidence would be of little value (e.g., establishing a diagnosis, medical nexus or service-connection for a secondary disability).
Whether or not you elect a personal hearing on appeal, you will have the opportunity to file a written statement with the Board in which to argue your case for a full award of benefits. It is always advisable to have the assistance of an experienced veterans service representative who can prepare and submit a detailed legal argument on your behalf. If you chose to represent yourself, however, you can use the SOC and any SSOC to become familiar with the laws and regulations that govern. Remember that it is not enough to merely disagree with the VARO’s decision. You must point to the evidence of record that rebuts or discredits the evidence that the VARO relied on in its decision, including military medical records, VA health care records, private health care records, physicians’ opinion letters, statements from lay individuals on non-medical matters, Social Security records and decisions, and other related documentation.
On appellate review, the BVA can take one of three actions. It can grant the claim and award the benefit(s) sought, or it can uphold the VARO’s decision and deny the claim. However, if the VARO committed either a substantive or procedural error, the BVA can remand the claim to correct the error. A remand decision is an order from the BVA to a lower element of the VA to take some action to readjudicate the claim properly. Often, this involves further development of the evidence (e.g., conduct a medical or psychiatric examination, obtain medical records from the claimant’s doctors or secure other relevant evidence), or to cure a procedural defect (e.g., the VARO did not issue a SOC/SSOC or provide the claimant with a legally required notification). Remand orders are usually directed to the VA’s Appeals Management Center (AMC) for action, although sometimes claims are referred to the VARO. BVA decisions that either grant or deny claims are considered final decisions, however, a remand decision is not.
|Congratulations! You have just received a copy of the BVA’s decision in your appeal. Hopefully, the BVA has overturned the VARO’s decision and granted your benefits in full. But suppose that the BVA improperly affirms the VARO’s decision without granting benefits or commits some other error that results in less than a full award of benefits. Since the BVA is the last stop at the VA for claims decisions, where can you go?|
|Post-BVA Appellate Review|
|Prior to 1988, a claimant who was denied at the BVA simply had to accept that decision. The BVA had the last word. In 1988, Congress passed a law that created a special Federal court to consider appeals of adverse BVA decisions. The U.S. Court of Appeals for Veterans Claims (CAVC), formerly the Court of Veterans Appeals, has exclusive jurisdiction to review appeals of final BVA decisions. This includes claims denials, partial grants of benefits and inadequate awards of benefits, but not remand decisions. Before filing a court appeal, there is still one last opportunity to have the BVA reconsider its decision.Whether a BVA reconsideration granted is at the BVA Chairman’s discretion. The request for reconsideration must be in writing and must specify an “obvious error of fact or law”. Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied. Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration. If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will issue based on the reconsideration request. If the request is denied, it’s time to go to court!
Similar to filing a substantive appeal with the BVA, you must file a notice of appeal (NOA) with the CAVC to confer jurisdiction on the court. The deadline for filing a NOA with the CAVC is 120 days from date that the BVA mails its decision to you. The mailing date is legally presumed to be the same date that appears on the front of the BVA decision. The NOA should be filed with the CAVC, not the VARO or BVA. The court’s address is:
Clerk, US Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
|The NOA must be post-marked by the U.S. Postal Service (rather than self-metered or shipped privately) within the 120-day period in order to be considered timely. If the deadline is approaching, you may fax the NOA to the CAVC clerk’s office at (202) 501-5848.There is a specific NOA form that is available at the CAVC’s website, www.vetapp.uscourts.gov. You do not need to argue your case in the NOA, but you will need to indicate the date of the BVA decision that you wish to appeal. There is a $50 filing fee for appealing to the court, which can be waived if payment would cause financial hardship. The court’s Form 4 (Declaration of Financial Hardship), is also available on its website. Either the filing fee or the declaration must accompany the NOA.
If you are unrepresented at the CAVC and miss the NOA filing deadline, there are limited rules that allow the court to consider the circumstances leading to the late filing. For example, the court will “equitably toll” the filing deadline if the appellant’s medical or physical condition prevented the NOA’s timely filing.
You do not need to have an attorney represent you before the CAVC, although it is highly advisable. The non-adversarial relationship between a claimant and the VA ends with the BVA’s decision. Once an appellant literally makes a “Federal case” out of it, the parties become legal adversaries and the VA’s attorneys go to work. If you do not have an attorney when you file your NOA, the CAVC will provide you with information about the Veterans Pro Bono Consortium (www.vetsprobono.org). The Consortium can review your appeal for judicial merit and, if it agrees that the BVA decision is in error, it will assign your appeal to one of its volunteer attorneys without any charge or fees.
The CAVC process often takes a year or more to complete. Once the parties agree on the content of the evidentiary record on appeal (which can take several months), the parties will file their initial, and possibly supplemental, briefs. Unrepresented appellants are allowed to file an informal brief on the court’s designated form. It is possible that the CAVC could schedule the appeal for oral argument, although it will issue a call for attorneys to volunteer to represent the appellant in such cases or it will ask interested parties to file amicus curiae (firend of the court) briefs in favor of the appellant and appear to at oral argument.
If the VA’s attorneys agree that the BVA erred in its decision, they may contact the appellant or appellant’s legal counsel, if any, to discuss a joint motion for the court to remand the appeal to the BVA for readjudication. A joint motion for remand is not a legal settlement, but, rather, the VA’s acknowledging the error and both parties’ requesting that the court allow the VA to correct the defect without the need for full briefing and a formal decision.
On appeal, the court can reverse the BVA decision and grant benefits, affirm the BVA decision and continue the denial or partial grant, or it can remand the appeal to the BVA. Typically, the CAVC will remand on the narrowest possible grounds, meaning that it will not address all assignments of error if one will do. If an appellant wants to appeal an adverse CAVC decision, he or she must file an appeal to the U.S. Court of Appeals for the Federal Circuit. At this point, the attorneys for the U.S, Department of Justice take over representing the government. The Federal Circuit is not the best place for an appellant to be unrepresented by counsel.
Because of the complexity of the VA claims adjudication process, having an experienced service representative is always an advantage. Going it alone unnecessarily risks an unsuccessful outcome at virtually every stage of the proceedings. Professional representation enhances the chances of receiving a favorable claims decision at the outset, thereby eliminating the need for time-consuming appeals. Veterans service organizations, like United Spinal Association, offer the assistance of highly trained and experienced veterans service representatives absolutely free. Please refer to our website (www.unitedspinal.org) for a list of national service officers in your area. If you live in an area where we do not have a service officer yet, please contact us anyway and we will endeavor to assist you remotely. No matter whom you select to represent you, it is important that you be personally involved in your case and tell your representative anything that is important, including facts that may be detrimental to your case. Negative evidence can always be dealt with. Last minute surprises can be costly.
|A Word About Getting Help|
|Because of the complexity of the VA claims adjudication process, having an experienced service representative is always an advantage. Going it alone unnecessarily risks an unsuccessful outcome at virtually every stage of the proceedings. Professional representation enhances the chances of receiving a favorable claims decision at the outset, thereby eliminating the need for time-consuming appeals. Veterans service organizations, like United Spinal Association, offer the assistance of highly trained and experienced veterans service representatives absolutely free. Please refer to our website (www.unitedspinal.org) for a list of national service officers in your area. If you live in an area where we do not have a service officer yet, please contact us anyway and we will endeavor to assist you remotely. No matter whom you select to represent you, it is important that you be personally involved in your case and tell your representative anything that is important, including facts that may be detrimental to your case. Negative evidence|
|The Last Word|
|Living with a spinal cord injury or disorder is undeniably a challenge. Difficult physical and psychological adjustments are just the beginning. The last thing anyone in this situation needs is a drawn out battle for duly earned health care and disability compensation. This guide is our effort to assist those with SCI/D by providing basic information concerning available benefits and the claims adjudication process. We hope that you will find this guide to be helpful. We would also note that a little information can be a dangerous thing. We strongly urge you to at least discuss your health care and compensation concerns with an experienced professional representative before you submit an application for VA benefits.United Spinal Association stands ready to assist you. We wish you the best in all of your endeavors.|